Citation Nr: 21069476 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-29 529 DATE: November 18, 2021 ORDER Service connection for chronic fatigue and muscle pain is granted. Service connection for residuals of a hysterectomy is granted. Service connection for a ventral hernia, as secondary to service-connected residuals of a hysterectomy, is granted. FINDINGS OF FACT 1. The Veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. She is diagnosed with chronic fatigue and muscle pain, a medically unexplained chronic multisymptom illness of unknown etiology, that is compensably disabling. 2. The Veteran's residuals of a hysterectomy had their onset in service. 3. The Veteran's ventral hernia was is caused by her service-connected residuals of a hysterectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue and muscle pain have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 2. The criteria for service connection for residuals of a hysterectomy have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 3. The criteria for service connection for a ventral hernia, as secondary to service-connected residuals of a hysterectomy, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1988 to September 1992, including service Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for chronic fatigue (listed as chronic fatigue syndrome and iron deficiency anemia, claimed as chronic fatigue syndrome); residuals of a hysterectomy (listed as a hysterectomy); and for a ventral hernia. In March 2021, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. 1. Chronic Fatigue Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, on or after August 2, 1990. Therefore, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. 38 C.F.R. § 3.317(a)(1). Under 38 C.F.R. § 3.317, compensation may be warranted on a presumptive basis for disabilities due to undiagnosed illness as well as medically unexplained chronic multisymptom illnesses. See 38 C.F.R. § 3.317 (a). This means that even if a Veteran's symptoms are attributed to a known clinical diagnosis, the presumptive provisions related to Gulf War service still apply. In particular, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Therefore, even if a multisymptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that she has chronic fatigue that is related to service. She specifically maintains that she suffered from chronic fatigue during her period of service and since that time. The Veteran also asserts that her chronic fatigue is the result of her service in Southwest Asia and should be considered under the provisions of 38 C.F.R. § 3.317. The Veteran served on active duty in the Marine Corps from September 1988 to September 1992, including service Southwest Asia. The Veteran's service treatment records indicate that she was treated for fatigue and/or chronic fatigue on occasions during service. A November 1988 treatment entry notes that the Veteran was seen for complaints of back pains, stomach pains, headaches, and a fever for two days. She stated that the previous night she started feeling tired and weak, with diarrhea, after her evening meal. The Veteran indicated that it was hard to stand up straight because of her back pain. The assessment was an unresolved sore throat. A March 1990 entry notes that the Veteran was seen with a complaint of persistent fatigue. She reported that she had a history of chronic fatigue for two months, but without changes in her appetite or medications. The Veteran indicated that she had a stressful episode with her family two months ago. The assessment was somewhat illegible, but was, apparently, pelvic inflammatory disease, without symptoms of toxicity. A June 1990 entry indicates that the Veteran was seen for constant headaches and fatigue. She reported that she had suffered from fatigue and from headaches for two weeks, which occurred once a week and lasted one to two days. She described her headache pain as constant, moderate throbbing in the frontal area, with some nausea and dizziness on standing. The assessment was probable strep, and tension cephalgia. A November 1991 entry notes that the Veteran complained of a sore throat and a cough, as well as fatigue, for two weeks. The assessment was bronchitis. Post-service private and VA treatment records, including VA examination reports indicate that the Veteran was treated for fatigue and chronic fatigue. The Veteran has also been diagnosed with muscle pain. The Board notes that the evidence of record includes opinions, as to the etiology of the Veteran's claimed chronic fatigue, pursuant to a February 2015 VA chronic fatigue syndrome examination report; an April 2015 VA Gulf War general medical examination report; and a January 2018 VA Gulf War general medical examination report. The January 2018 VA Gulf War general medical examination report includes a notation that the Veteran's claims file was reviewed. It was noted that the Veteran served on active duty from September 1988 to September 1992, and that she served in Iraq from approximately 1991 to 1992. The Veteran reported that while serving in Iraq, she was exposed to various sorts of fumes and aerosols. She stated that her skin was very dry, that she had acne, and that she had to use a moisturizing cream. The Veteran indicated that she currently had fatigue, and that as the fatigue had gradually worsened, she had chronic sleepiness, even during the day. She maintained that she had difficulty making products for her business. The Veteran further stated that she had chronic sore muscles. The Veteran reported that she had a fibroid uterus. She attributed her fibroid tumors to her exposures in Iraq. The Veteran stated that she also had a cyst on her right ovary, and that she underwent a partial hysterectomy in 2008. She related that she developed an incision hernia, and that she underwent an incisional hernia repair, with mesh, in 2009. She maintained that she did not have all of her feeling back, in that area, and that her naval area was very dry. The diagnoses included were chronic fatigue and muscle pain. The examiner reported that the Veteran had additional signs and/or symptoms that may represent an undiagnosed illness, or a diagnosed medically unexplained chronic multisymptom illness. The examiner stated that the Veteran's fatigue was chronic, progressive, and moderately severe. It was noted that the physical examination, and the laboratory studies, were normal. The examiner indicated that the Veteran's muscle pain was chronic, and that it was moderately severe. The examiner reported that the physical examination was unremarkable, and that the laboratory studies were normal. The examiner stated that the Veteran was able to take care of her husband, who was wheelchair bound, and that she was able to perform their necessary shopping, cleaning, and cooking. The examiner reported that there was functional impact from additional sigs and/or symptoms that may represent an undiagnosed illness, or a diagnosed medically unexplained chronic multisymptom illness. The examiner stated that the Veteran lacked the sustained energy necessary to make crafts for her business, and that she had difficulty making enough product to meet her customer demand. It was noted that the Veteran could barely work even eight hours a day. The examiner indicated that the Veteran's chronic fatigue and muscle pain were more likely than not representative of a medically unexplained chronic multisymptom illness of an unknown etiology. The examiner maintained that the Veteran lacked the clinical stigmata for fibromyalgia. The Board observes that the Veteran's service treatment records indicate that she was treated for fatigue and chronic fatigue on occasions during service. The Board also notes that her post-service treatment records show that she was treated for fatigue and chronic fatigue, as well as for muscle pain. The Board observes that a VA examiner, pursuant to the January 2018 VA Gulf War general medical examination report, specifically found that the Veteran's chronic fatigue and muscle pain were more likely than not representative of a medically unexplained chronic multisymptom illness of an unknown etiology. The Board finds that the opinions provided by the examiner, pursuant to the January 2018 VA Gulf War general medical examination report, in regard to the Veteran's claimed chronic fatigue, and the diagnosed muscle pain, are the most probative of record. Under section 3.317, presumptive service connection is available for a diagnosable, but medically unexplained chronic multisymptom illness of unknown etiology. Thus, because the evidence shows that the condition is compensably disabling under 38 C.F.R. § 4.88b, Diagnostic Code 6354, service connection for chronic fatigue and muscle pain is warranted. 2. Residuals of a Hysterectomy As discussed above, the Veteran is now service-connected for chronic fatigue and muscle pain. The Veteran contends that she has residuals of a hysterectomy that are related to service. She specifically maintains that her menstrual and/or vaginal disorders during service, including pelvic inflammatory disease, dysmenorrhea, and amenorrhea, led to her subsequent hysterectomy. The Veteran also asserts that her residuals of a hysterectomy are the result of her service in Southwest Asia and should be considered under the provisions of 38 C.F.R. § 3.317. The Veteran served on active duty in the Marine Corps from September 1988 to September 1992, including service Southwest Asia. The Veteran's service treatment records indicate that she was treated for menstrual and/or vaginal disorders on numerous occasions. The Veteran also suffered a miscarriage and underwent a dilation and curettage procedure. Such records indicate diagnoses, including pelvic inflammatory disease; a urinary tract infection verses pelvic inflammatory disease; secondary amenorrhea and possible pill amenorrhea; amenorrhea since September 1989; vaginitis; monilial vaginitis; vaginitis, with possible cervicitis, of unknown etiology; candida vaginitis; yeast vaginitis, secondary to antibiotics; probable bladder spasms; and a non-viable pregnancy. Post-service private and VA treatment records, including a VA examination report, show treatment for multiple menstrual and/or vaginal disorders, including fibroids; menorrhea; a fibroid uterus, with menorrhagia; an enlarged uterus, with myomas; a right follicular or hemorrhagic ovarian cyst; an unspecified noninflammatory disorder of the ovary, fallopian tube, and broad ligament; and leiomyoma of the uterus. Such records also indicate that the Veteran underwent a total abdominal hysterectomy and right ovarian cystectomy. A January 2018 VA gynecological conditions examination report includes a notation that the Veteran's claims file was reviewed. It was noted that the Veteran served on active duty from September 1988 to September 1992, and that she served in Iraq from 1991 to 1992. The Veteran reported that she had a miscarriage in "1992," and that she underwent a dilation and curettage procedure. She stated that she had heavy menstrual periods, and that she took iron for anemia. It was noted that the iron helped the Veteran's anemia, but that she had episodes of abdominal pain, and she elected to undergo a partial hysterectomy. The Veteran indicated that she underwent the abdominal hysterectomy at a VA facility in 2008. She stated that she underwent a simple repair of an incisional hernia related to the hysterectomy in 2008, and that, in 2009, she underwent a repair of an incisional hernia, with mesh. The diagnosis was leiomyoma of the uterus. The examiner indicted that it was more likely than not that the menstrual disorder that resulted in a hysterectomy was due to uterine fibroids, and it was less likely than not that the menstrual disorder was due to exposure during the Gulf War. In a February 2018 addendum, the same examiner, referred to a medical treatise, and reported that uterine fibroids were a disease with a clear and specific etiology and diagnosis. The examiner indicated that it was less likely than not that the diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board observes that the Veteran was treated for numerous menstrual and/or vaginal disorders during service, and that diagnoses included pelvic inflammatory disease; a urinary tract infection verses pelvic inflammatory disease; secondary amenorrhea and possible pill amenorrhea; vaginitis; monilial vaginitis; vaginitis, with possible cervicitis, of unknown etiology; candida vaginitis; yeast vaginitis, secondary to antibiotics; and probable bladder spasms. The Board notes that post-service treatment records indicate that the Veteran was treated for numerous menstrual and/or vaginal disorders, including fibroids; menorrhea; a fibroid uterus, with menorrhagia; an enlarged uterus, with myomas; a right follicular or hemorrhagic ovarian cyst; unspecified noninflammatory disorder of the ovary, fallopian tube, and broad ligament; and for leiomyoma of the uterus, and that she underwent a total abdominal hysterectomy and right ovarian cystectomy. The Board observes that a VA examiner, pursuant to a January 2018 VA gynecological conditions examination report, following review of the claims file, found that it was more likely than not that the menstrual disorder that resulted in a hysterectomy was due to uterine fibroids, and it was less likely than not that the menstrual disorder was due to exposure during the Gulf War. In a February 2018 addendum, the same examiner reported that uterine fibroids were a disease with a clear and specific etiology and diagnosis. The examiner indicated that it was less likely than not that the diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board observes that the examiner's opinions appear to be somewhat contradictory. The examiner seems to find that the Veteran's menstrual disorder, during service, that resulted in a hysterectomy, was due to uterine fibroids, but that it was less likely than not that the uterine fibroids were due to exposure during the Gulf War, or to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board observes that the Veteran clearly was treated for numerous menstrual and/or vaginal disorders during service, and a VA examiner appears to have found that the Veteran's menstrual disorder resulted in a hysterectomy. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for residuals of a hysterectomy. Therefore, service connection for residuals of a hysterectomy is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. 3. Ventral Hernia As discussed above, the Veteran is now service-connected for chronic fatigue and muscle pain, and for residuals of a hysterectomy. The Veteran contends that she has a ventral hernia that is related to service, or, more specifically, that is related to her period of service. The Veteran also asserts that her ventral hernia is the result of her service in Southwest Asia and should be considered under the provisions of 38 C.F.R. § 3.317. The Veteran served on active duty in the Marine Corps from September 1988 to September 1992, including service Southwest Asia. The Veteran's service treatment records do not show treatment for any hernias, to include a ventral hernia. Post-service private and VA treatment records, including a VA examination report, show treatment for an incisional hernia and fro a ventral hernia. A January 2008 VA hernias examination report includes a notation that the Veteran's claims file was reviewed. It was noted that the Veteran served on active duty from September 1988 to September 1992. The Veteran reported she had developed heavy menstrual bleeding by 2005, and that an ultrasound shows a uterine fibroid. She indicated that she was treated with iron, that she developed abdominal pain, and that she elected to undergo a hysterectomy. The Veteran stated that in 2008, she underwent a partial abdominal hysterectomy, and that she developed an incisional hernia, and that she underwent a minor repair at that time. She reported that the hernia recurred, and that she subsequently had a ventral hernia repair, and that mesh was used. The diagnosis was a ventral hernia. The examiner indicated that it was more likely than not that the Veteran's ventral hernia was proximately due to, or the result of, her hysterectomy. The examiner stated that the hernia developed after the performance of an abdominal hysterectomy. The Board notes that the examiner, pursuant to the January 2018 VA hernias examination report, specifically found that the Veteran's ventral hernia was proximately due to, or the result of, her hysterectomy. As discussed above, the Veteran is now service-connected for residuals of a hysterectomy. The Board finds that the opinion provided by the examiner, pursuant to the January 2018 VA hernias examination report, is the most probative of record. The Board therefore finds that the Veteran's ventral hernia is due to, or a result of, her service-connected residuals of a hysterectomy. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.